Thursday, August 9, 2012

Joint criminal enterprise in the Taylor judgment

This post is part of the ongoing series about the Special Court for Sierra Leone (SCSL) trial of former Liberian president Charles Taylor (see prior posts here). His trial and conviction has generated wide debate, scholarship and commentary about what it has done for Sierra Leone, Liberia, the victims of those conflicts and international (criminal) law jurisprudence.
For me, though, the judgment was notable as much for what it did not do as for what it did. The Trial Chamber did not convict Taylor on the basis of the joint criminal enterprise (JCE) theory of liability, convicting instead on aiding and abetting and planning. JCE was a central issue in the Taylor trial, and the core of the prosecution’s case. It formed the sole basis for the Trial Chamber’s decision denying the defense motion for acquittal on the basis of insufficient evidence at the end of the prosecution’s case. That the Trial Chamber did not find Taylor guilty on this mode of liability was something of a surprise, but even more surprising was the paucity of discussion on JCE in the final judgment.
JCE has been a hotly debated concept in international criminal law, with critics arguing that it leads to guilt by association. The JCE debate reached new heights, however, over how the SCSL has applied (or mis-applied) JCE.
JCE was also highly contentious in the Taylor trial (see previous posts here and here). In a tardy decision—given after the prosecution had rested its case—the majority of the Trial Chamber found that the prosecution had properly pled JCE, but also “identified” a common purpose of terrorizing the civilian population, a specific intent crime (Taylor Judgment, 6898). This decision was upheld on appeal. The common purpose identified by the Trial Chamber replaced what the prosecution had characterized as a criminal “means” (i.e. that the common plan involved the crimes) with a criminal “objective” (that the common plan amounted to the crime of terrorism, which involved the other alleged crimes). This narrower interpretation of the pleaded JCE seems to have been part of what lies behind the lack of conviction on JCE.
The Trial Chamber judgment does not provide much rationale for its decision on JCE or develop the SCSL’s JCE jurisprudence in any meaningful way. In a scant seven paragraphs of explanation (impressive when considering the judgment contains 7000 paragraphs), the Chamber found that the prosecution had failed to prove Taylor participated in a common plan of terrorizing the civilian population.
The Chamber’s findings can be summarized as follows:

There was no common plan prior to 1996 between Taylor, RUF leader Foday Sankoh and Dr. Manneh (a Gambian rebel leader) involving the crimes in the indictment. (6900)

While Taylor provided significant support to the RUF early on, this was not done pursuant to a common plan within the context of a JCE. (6900)

The relationship between the RUF and Taylor changed over time, and was mutually beneficial, “the expression of converging and synergistic interests, rather than ‘a common plan to terrorize the civilian population of Sierra Leone.’” As their interests evolved, so did their relationship. (6901)

There was no proof that Taylor’s support for the RUF’s 1991 invasion was undertaken pursuant to a common plan to terrorize the civilian population of Sierra Leone, but rather this support was given because they shared common enemies. (6902)

There was no proof that Taylor’s forces, the NPFL, trained the RUF in terror tactics. Any military cooperation was “limited in its purpose and it was military, not criminal, in nature.” Such cooperation ended in 1992, and Taylor provided only low level support until he became president in 1997. (6903 - 4)

Support provided once Taylor became president was based on a quid pro quo relationship, in particular the provision of weapons in exchange for diamonds—not a common plan to terrorize the civilian population of Sierra Leone. (6904)

Based on the above, Taylor and the RUF were military allies and trading partners, but Taylor was not part of any JCE. (6905)

There was no common plan, and Taylor’s (at times significant) support was therefore not provided pursuant to any JCE. This significantly downplays Taylor’s role and intent with respect to the RUF’s crimes in the context of the alleged JCE. This seems odd when compared to the following sections on aiding and abetting and planning, where the Trial Chamber outlines frequent and significant contributions by Taylor to the RUF’s criminal activities. However, given that the first essential element was not met, the subsequent elements are irrelevant.
As noted above, the Trial Chamber’s rationale on JCE refers back systematically to its previously “identified” common purpose: terrorizing the civilian population. It is problematic that the Chamber identified this common purpose only after the prosecution had called (and the defense had cross-examined) all of its key witnesses, essentially prohibiting them from leading any additional evidence about the terrorizing aspect of the alleged common plan. Yes, the indictment (which Judge Lussick referred to as “brain-twisting”) was drafted by the OTP, but it was very similar to the indictments in the RUF and AFRC cases, which were not interpreted this way by the respective trial chambers (and Trial Chamber II heard the AFRC case). This (in addition to several other issues beyond the scope of this post) begs the question of whether like cases were treated alike at the SCSL.
On the other hand, the decision narrowed an overly broad and simplistic JCE pleading by the prosecution and avoided the dangers of accepting a non-criminal common purpose like the Appeals Chamber did in the RUF case. Some might argue that this led to a fairer result in the final judgment.
Somewhat surprisingly, the prosecution did not appeal the JCE findings (unsurprisingly, neither did the defense). Rather, the prosecution limited its appeal to four discrete issues, including the lack of convictions for instigating and ordering. Therefore, the issue would likely only arise again in the Taylor trial if the Appeals Chamber raises the issue proprio motu.